Monday, March 28, 2011

Based on the undisputed testimony of Phoenix Police Sergeant Richard Switzer and eyewitness Frank Madden, Eric King could not have been involved in the robbery and murder for which he is to die. Those two witnesses were confident that the shooter was over six feet tall. Switzer, who had the better opportunity for comparison, identified the unknown participant to be taller than the known participant, Richard Jones.

Jones is 6 feet 1 inch tall. He was in the company of the shooter that night when the shooting took place. He was not charged with any crime. Instead Jones traded Eric King's life for his. It was a tough call, but you have to do what you have to do. Richard Jones walked free, Arizona got their conviction, and Eric King will get the needle.

Lady Justice will be glad she is blindfolded.

How can we as a society be so certain of Eric King's guilt that we are willing (and in too many circles, eager) to kill him? Eric King is 5 feet 8 inches tall, roughly one-half foot shorter than the shooter. To understand how substantial this height difference is, study the scaled comparison above.

Are you confident with your part in killing the man on the right even though two witnesses, one a trained police officer, tell you that the person who committed the crime was as tall as the man on the left?

Would you push the plunger?

Whether you like it or not, as Americans we each own at least a small part of this execution.

Sunday, March 27, 2011

William Glenn Boyd is scheduled to be executed by the people of Alabama on 31 Mar 2011 for the murders of Fred and Evelyn Blackmon. Boyd admits to participating in the robbery and kidnapping of the two victims. Boyd claims, however, that Robert Denton Milstead (his partner-in-crime) is the one who actually murdered the victims. Milstead claimed that Boyd is the one who actually murdered the victims.

Boyd drew the short straw. After five tries, Milstead finally told the story the State wanted to hear. They then allowed him to turn state's evidence in exchange for his life.

As I've said before, we no longer have a jury-based justice system in this country. We have a prosecutor-based system. The prosecutor decides who talks and who walks, who gets tried and who gets fried.

From the appellate decision in Boyd v. Allen, I offer this summary of the conflicting stories of Boyd and Milstead. It was a brutal, gruesome crime regardless of the roles.

At trial, there was conflicting testimony regarding whether Boyd had murdered Fred Blackmon, Evelyn Blackmon, or both victims. Anniston Police investigator Gary Carroll testified that Boyd insisted in his first statement to the police that his accomplice, Milstead, had killed both victims. Specifically, Boyd told the police that on the morning of March 26, 1986, he and Milstead, both armed, gained entry into the Blackmons' home. Boyd and Milstead had previously discussed robbing the Blackmons. Boyd admitted that he accompanied Mr. Blackmon to the bank, where Mr. Blackmon withdrew $5,000 and turned it over to Boyd, and returned to the Blackmons' house. Boyd and Milstead then forced the Blackmons into Mr. Blackmon's Cadillac Eldorado and drove to an area in Ohatchee, Alabama, near the river. After the car was parked, Milstead, according to Boyd, physically assaulted Mrs. Blackmon, and then shot her. Mr. Blackmon tried to barter for his life, but Boyd hit him on the back of the head, and then Milstead shot him too. Boyd and Milstead left the crime scene in the Cadillac Eldorado, only to return later that night. They stuffed Mr. Blackmon's body in the trunk of the Cadillac Eldorado and rolled the car down a boat ramp into the river. They left and returned to the crime scene still again the next morning, stuffed Mrs. Blackmon's body into a 55-gallon barrel and rolled the barrel into the river. They later disposed of the two guns used during the crime by throwing them into a creek.

On April 4, 1986, Boyd gave a second statement to the police that provided a detailed description of how to find the locations of the crime scenes. Boyd provided a third statement on April 6, 1986, claiming that he had remained in the car with Mr. Blackmon while Milstead took Mrs. Blackmon into the woods. Boyd said that Milstead was just supposed to leave her there, but decided to kill her instead. Boyd accompanied police to a creek on April 11, 1986, to show them where the guns had been discarded after the murders. A nickel-plated Raven Arms Company.25 caliber automatic pistol and a black .22 caliber pistol were recovered. There was one unfired round in the .25 caliber pistol, and five rounds still in the .22 pistol.

Milstead's statements and testimony, on the other hand, said that Boyd had killed both victims. Milstead pleaded guilty to capital murder and testified for the State against Boyd, in exchange for a sentence of life without parole. Prior to testifying, he had given five statements to the police, which varied in certain respects, but four of them consistently accused Boyd of shooting both victims as well as assaulting them.

Milstead testified that on the morning of the crime, Milstead, who did not know the Blackmons, gained entry into the Blackmons' house along with Boyd; they were both armed with loaded pistols. Boyd then gagged and blindfolded Mrs. Blackmon, and threatened the Blackmons that Mrs. Blackmon's daughter, Julie, had been taken hostage and would be killed if the Blackmons did not pay a ransom. Boyd forced Fred Blackmon to go to the bank to withdraw money, leaving Mrs. Blackmon alone at the house with Milstead. After Mr. Blackmon withdrew $5,000 and gave the money to Boyd, they returned to the home. Boyd and Milstead then forced Fred and Evelyn Blackmon at gunpoint into Mr. Blackmon's Cadillac Eldorado, and drove them to a secluded area by the river.

At that point, they separated the Blackmons, first forcing Mrs. Blackmon to walk away from the car to a clearing behind a brush pile. Boyd then re-gagged and blindfolded Mrs. Blackmon, and, after talking to her, struck Evelyn Blackmon across her forehead and nose with a stick. Mrs. Blackmon screamed, whereupon Boyd tried to strangle her with a cloth. Boyd then shot Mrs. Blackmon with a .22 caliber pistol, which he had muffled with the cloth. After she continued to fight for her life, Boyd took the .25 caliber gun from Milstead, who was standing with them, and shot her still again in the back and in the head.

Boyd and Milstead returned to the car and drove Mr. Blackmon to another location. After exiting the car, Boyd hit Mr. Blackmon's head with a stick. This blow also broke the taillight on Mr. Blackmon's Cadillac. Boyd then took a piece of cloth and started choking Mr. Blackmon with it. When Fred Blackmon struggled for his life and stabbed Boyd with a stick, Boyd took out the .25 caliber pistol and put it to Mr. Blackmon's throat. Mr. Blackmon begged Boyd not to shoot him, offering to give him $50,000. Boyd told Fred Blackmon that it was too late, and shot him in the chest and neck with the .25 caliber pistol. Boyd and Milstead left the scene in Mr. Blackmon's car. They returned later that night to the location of Fred Blackmon's murder, stuffed his body into the trunk of his car, and rolled it into the Coosa River. After a few minutes, the car sank. They threw the two pistols into a creek that night.

The next morning, Boyd and Milstead returned to the crime scene, finding Mrs. Blackmon's body. By Milstead's account, Boyd said the body was too stiff, so he took Milstead's ax and tried to cut Mrs. Blackmon's body in half. Boyd then took the body and broke Evelyn Blackmon's back, and along with Milstead threw her body into a metal barrel along with some cement blocks and rocks. Boyd cut some holes in the barrel with the ax. He and Milstead rolled the barrel into the river. The barrel sank in the water.

I oppose the execution of people who might be factually innocent of the crime for which they are to die. I suspect that to prevent the execution of the factually innocent, we might have to ban the death penalty entirely.

I find no evidence that William Glenn Boyd did not participate in the armed robbery and kidnapping that led to the deaths of Fred and Evelyn Blackmon. Since I limit my efforts to people who are in all respects factually innocent, I stand mute with regard to the execution of William Glenn Boyd.

Wednesday, March 23, 2011

This post is unrelated to issues of wrongful conviction/imprisonment/execution. I post because I might hereby spare a reader some unnecessary nuisance.

Beware of a UPS malware attack.

I just received an email, allegedly from the United Parcel Service, informing me I would soon be receiving a package. It included an attachment that I was to open to see the tracking information.

I immediately smelled a big fat commie rat. The email wasn't exactly from UPS. It was from joiner22@ups.com. The attachment type looked strange: UPSnotify.rar. I had not previously seen a .rar file. Since I know that clicking on attachments is a good way to infect my computer, I don't open attachments unless they are from someone I trust.

By comparison, when Amazon informs me they have sent my order, they put the tracking information in the body of the email. They don't require that I open a .rar attachment. Here's the body of the email I received.

Dear customer.

The parcel was sent your home address.
And it will arrive within 7 business day.

More information and the tracking number are attached in document below.

They didn't take the time to do a mail merge. Instead of personalizing the email, they used a generic salutation of "Dear customer" followed by a period rather than a comma.

They begin the second sentence with "And."

They forgot "the" before "document" in the third sentence.

The copyright notice made me laugh. What the hell are they copywriting?

Rather than open the attachment, if only out of morbid curiousity, I went to Google, the source of all knowledge. And I entered the email title in the search field: United Parcel Service notification. The entire first page of hits consisted of sites explaining that my email was indeed a common malware scam. I didn't go past the first page.

The first link was from Naked Security: "Outbreak: United Parcel Service notification malware attack spammed out."

The fix is trivial. Don't open the attachment. Delete the email, empty your email trash, and go back to fretting over the wrongfully convicted.

Monday, March 21, 2011

Eric King sits on death row. The people of Arizona plan to execute him on 29 March. Though I stand mute for most executions, I fervently oppose this one. I believe Eric King may in fact be innocent of the crime for which he is to die.

This is the fifth and last part of a my series on Eric King series. Prior to reading this Part 5 you should first read Parts1, 2, 3, and 4. Part 1 is here. Part 2 is here. Part 3 is here. Part 4 is here. A link at the each Part will lead you to the next, leading you right back to this post.

Last Friday, I mailed a letter to Arizona Governor Jan Brewer and a copy to the Arizona Board of Executive Clemency. Limiting my self to one page, I wrote the following:

<<>>

The Honorable Jan Brewer

1700 West Washington
Phoenix, Arizona 85007

Governor Brewer,

The scaled image below shows that Arizona risks executing an innocent man. Michael Jones admits to being at the shooting. His story freed him from custody and placed Eric King on death row.

Phoenix Police Sergeant Richard Switzer, however, intercepted Jones and his companion as the two of them were walking from the murder scene. The companion fled and was not apprehended. Sergeant Switzer noted that the companion was taller than Jones. Jones is 6 feet 1 inch tall.

I write of wrongful convictions and executions under the pseudonym The Skeptical Juror. I have publicly previewed on my blog each of the U.S. executions this year. In all cases except two, I found no possibility of innocence. I therefore stood mute on those cases, neither supporting nor opposing them. In the case of Richard Clay, I opposed the execution and wrote to Missouri Governor Jay Nixon. Governor Nixon, for reasons likely unrelated to my efforts, commuted Clay's sentence to life in prison without possibility of parole.

I now oppose the execution of Eric King. I give my reasons in an extended five-part series on my blog at www.skepticaljuror.com. I recommend that you read that series before allowing the execution of Eric King. You will learn that the evidence against King came in exchange for the freedom of the one person who admitted to being at the murder. You will learn that the testimony of those people having no motive to lie exculpated King. You will learn that the lead detective, Armando Saldate, earlier had his "honesty, competency, and overall reliability" questioned by his own department, and later played a key role in placing four other people on death row. One of those, David Hyde, had his conviction reversed and now walks free. The cases of two others, Debra Milke and Eldon Schurz, are seriously tainted by Detective Saldate's questionable "honesty, competency, and overall reliability."

The evidence of Eric King's guilt, as portrayed in the image above, is so easily understood that his execution, if allowed to proceed, may become as notorious as that of Cameron Todd Willingham, late of Texas. Governor Perry wrestles to this day with Willingham's execution. Governor Nixon's decision to spare Richard Clay, on the other hand, has proven to be unremarkable. Governor Nixon seems to have received neither praise nor scorn. I ask that you consider clemency for Eric King.

Sunday, March 20, 2011

I have received an email from Kricket Schurz, wife of Eldon Schurz. I summarized the case of Eldon Schurz when discussing (in Part 3) the role Armando Saldate had played in placing five people on death row under questionable circumstances.

Kricket Schurz corrects me on two points and criticizes my summary of her husband's case.

First, she points out that prosecutor Levy's first name is Noel, not Harold. For some reason, I used Noel approximately half the time when discussing the King's prosecutor in Part 4, and I used Howard the other half. I have no explanation why. The point is, however moot due to the other, more significant error she pointed out.

Noel Levy did not prosecute Eric King. I suspect that I had read so much about the team of Saldate and Levy putting people on death row under questionable circumstances that I merely assumed Levy prosecuted King. As I review my resources, I find not a single reference to Levy in the King case. Once again, the error is entirely mine.

I have corrected Part 4 to remove all mention of Levy and of other cases he worked on. With respect to King's prosecutor, I refer to him now only in vague terms such as King's prosecutor or the prosecutor.

With respect Kricket Schurz' criticism regarding my summary of her husband's case, she notes only that I "totally misrepresent" it. She offers no specific point of error, so I'll assume she believes my summary is generally off target.

While I relied primarily on King's appellate decision for matters related to King, I relied on Kricket Schurz' site for much of what I wrote about the other cases of potentially innocent people on Arizona's death row. I recommend her site as a starting point for anyone wanting to delve deeper into these cases.

I note here that Kricket Schurz is one of three women responsible for the Arizona Death Penalty Injustice site. The other two are Sherry Breznicki and Judie Wilson-Spowart.

I always appreciate feedback from readers, particularly when they point out my errors so that I can correct them.

Thursday, March 17, 2011

Eric King sits on death row. The people of Arizona plan to execute him on 29 March. Though I stand mute for most executions, I fervently oppose this one. I believe Eric King may in fact be innocent of the crime for which he is to die.

This is the fourth part of a five-part series. Prior to reading this Part 4 you should first read Parts1, 2, and 3. Part 1 is here. Part 2 is here. Part 3 is here. A link at the each Part will lead you to the next, leading you right back to this post.

Overview

Eric King was executed based entirely on the word of Michael Page Jones and Nekita Renee Hill. Jones had a substantial reason to tell the State what it wanted to hear: his freedom, even his life. Hill also had substantial reason to tell the State what it wanted to hear: her boyfriend's freedom, even his life. Before trial, Jones and Hill told the police what they wanted to hear. All charges were then dismissed against Michael Jones. He walks free today as Eric King faces the needle.

At trial, Jones and Hill were both extremely reluctant to testify, to repeat what they had told the police when Jones' life, rather than King's life, was on the line. In his opening statement, King's prosecutor forewarned the jury that his two star suspects were unwilling to stand behind the story they had previously claimed as true. Regarding Jones, the prosecutor said:

You will hear from a man by the name of Michael Page Jones. Mr. Jones was with Eric King that night. In fact, at one time Mr. Jones was charged as an accomplice. The case was later dismissed. Michael Jones was with Mr. King. He told the police officers later in December exactly what happened. I can't guarantee you what Mr. Michael Page Jones is going to say when he gets on the stand, ladies and gentlemen, but he was there that night and he has information, and I suggest to you that if he testifies truthfully as he should, he will implicate the defendant, Eric King, without a doubt.

Regarding Hill, the prosecutor said:

Who else? Renee Hill is here. Renee Hill at one time was the girlfriend of Michael Jones. Renee Hill currently lives in the Projects. She is on welfare, and she is scared to death. She comes to Court today not voluntarily, but because Detective House managed to go out and find her over the last 24 or 36 hours and bring her to the Court. She is scared. Whether she should be or whether she shouldn't be, ladies and gentlemen, it doesn't matter, because in her own mind she is scared. She does not want to testify. She does not want to come into this courtroom under any circumstances. Ladies and gentlemen, she will be brought into this courtroom, and you will hear her testify.

Sure enough, Michael Jones feigned memory loss, though he eventually sort of, king of remembered. And sure enough, Nekita Renee Hill was explicit that she did not want to testify, though she did not apparently ever say she was scared, much less scared to death. That characterization came only from the prosecutor.

In opening statements, the attorneys (allegedly) are to limit themselves to outlining the testimony the jury will hear. An attorney is not allowed, at least in theory, to tell the jury that any witness (much less his own) will be lying if he tells a story different than the attorney wants the jury to believe. An attorney is not allowed to divine the current and future thoughts of any witness (much less his own) to predispose the jury's thoughts.

The jury is, in theory, required to render a verdict based on the facts of the case as presented by the witnesses. To present them with the speculative opinions of the State's prosecutor before the defense has an opportunity to utter a word is prosecutorial misconduct. King's post conviction appeal was, in fact, based in part on the very misconduct cited above.

Appellate courts, being interested in the efficient adminstration of justice, are reluctant to intervene while justice is being adminstered. When faced with the clear misconduct in the King case, they handled it with bluster and a tell. First the bluster, then the tell.

Michael Jones

Relying on State v. King, I offer the following judicial bluster regarding the prosecutor's prediction that his own witness would lie.

After the prosecutor completed his opening statement, defendant asked for a mistrial, claiming that the prosecutor vouched for the credibility of Michael Page Jones. The trial court denied the motion and stated that he did not "believe there was a clear vouching of the witness." Moreover, the trial judge noted that he had admonished the jury before opening statements that none of the statements were evidence and that he would be giving a similar admonition before closing arguments.

"The object of an opening statement is to apprise the jury of what the party expects to prove and prepare the jurors' minds for the evidence which is to be heard." [citation] Yet, "it is improper for the prosecution to vouch for the credibility of a government witness." [citation] There are "two forms of impermissible prosecutorial vouching: (1) where the prosecutor places the prestige of the government behind its witness; [and] (2) where the prosecutor suggests that information not presented to the jury supports the witness's testimony." [citation] "The first type of vouching involves personal assurances of a witness's veracity...." [citation] "The second type of vouching involves prosecutorial remarks that bolster a witness's credibility by reference to matters outside the record." [citation] With these statements, the prosecutor was voicing his expectation that Jones's testimony would be consistent with the earlier statements that he made to the police, and that he would implicate King. At the same time, however, the state was preparing the jury for the possibility that Jones might testify otherwise. We fail to see, nor does defendant explain, how, by suggesting that one of its own witnesses might lie on the stand, the state was vouching for the credibility of its witness. ... Because we find that the state did not vouch for the credibility of its witness, we find no error.

The prosecutor's misconduct with respect to Jones falls in the category of vouching. The jury is required to render their verdict based on the evidence presented at trial. They are not supposed to base their verdict based on assurances from the prosecution that the defendant is guilty. This is in part because juries will assume that the prosecution has inside knowledge of the case that the jury will not be allowed to hear. The concern is that the jury will convict based on evidence they believe the prosecutor has rather than on evidence they hear in court.

The appellate court blustered. "We fail to see ... how, by suggesting that one of its own witnesses might lie on the stand, the state was vouching for the credibility of its witness."

Regarding that finely tuned observation, and just that observation, I agree. The prosecutor wasn't vouching for his own witness. He was trashing his own witness. He didn't want the jury to believe the testimony of his own witness, he wanted them to disbelieve it.

The prosecutor was vouching for his case, not for his witness. That's a subtlety I'm sure was not lost on the appellate court judges. They simply ignored it so that the adminstration of justice could proceed.

There was a method to the prosecutor's madness. He knew that Jones planned not to testify as the State wished, despite the court's transparently false assertion that the prosecutor "was voicing his expectation that Jones's testimony would be consistent with the earlier statements that he made to the police." King's prosecutor therefore painted Jones as a liar, thereby opening the door to bring Detective Armando Saldate to the stand.

Normally, and I used that word loosely, Saldate would not have been allowed to tell the jury what Jones told him. That is hearsay. It's best that the jury hear directly from the witness rather through an intermediary. Unfortunately, there are more exceptions to the hearsay rule than there are holes in Albert Hall. The exception the prosecutor set up in this case is "prior inconsistent statements."

In theory, Saldate was brought before the jury to explain only that Jones had made prior inconsistent statements. In reality, Detective Armando Saldate was brought before the jury because the State had a losing case without him. Saldate's job was to tell the jury what Jones allegedly told Saldate in the privacy of the interview room. Once again, the jury would be asked to rely on the "honesty, competency, and overall reliability" of Detective Armando Saldate.

The prosecutor wasn't vouching for Michael Jones. He was vouching for Armando Saldate. From what I've learned of Saldate, he certainly needed it.

Nekita Renee Hill

Again relying on State v. King, I offer the following judicial bluster regarding the prosecutor's pronouncement that Hill was "scared to death."

Equally unpersuasive is defendant's claim that the prosecutor committed misconduct by declaring that Hill feared for her safety... Defendant argues that the clear implication of the statement that Renee Hill was afraid to testify was that "King or others acting for him had threatened her," and that the state's "reference to Hill's fear called the jury's attention to matters it would not have been justified in considering."

We begin by noting that defendant did not object to this statement until after Hill testified. This court has repeatedly held that the defendant must voice his objection to arguments that are objectionable, and failure to do so constitutes a waiver of any right to review. [citation] Thus we conclude that by failing to object to the prosecutor's comments in a timely fashion, defendant waived any objections that he may have had to these comments.

Defendant argues that even absent objection, the introduction of these statements was fundamental error because it prevented him from having a fair trial. We disagree.

Defendant moved for a mistrial after Hill's testimony and argued that the combination of her testimony and the prosecutor's opening statements concerning Hill's fear made it impossible for him to get a fair trial. The trial court denied the motion, stating:

[Hill's] demeanor obviously indicated she did not want to be there. She was a very reluctant witness. It was obvious she was under a great deal of stress and anxiety and fear, and she never indicated that fear was coming from any specific individual or defendant or anybody from his family.

We have reviewed both the opening statements and Hill's testimony on direct examination, and we agree with the trial court's conclusions.

Moreover, far from being a matter that the jury is not justified in considering, Hill's unwillingness to testify goes directly to her credibility. As with Jones, the prosecutor had no idea what Hill would say once she was on the stand. [That sound you just heard was the BS detector going off.-- tsj] The prosecutor rightly anticipated that he would have to provide the jury some explanation for Hill's eventual refusal to identify defendant. [This sentence contradicts the prior claim that the prosecutor had no idea what Hill would say. -- tsj]

... Thus, we conclude that the state did not err either in eliciting testimony concerning Hill's reluctance to testify or in preparing the jury for the possibility that Hill was going to be a reluctant witness.

King's prosecutor was clearly suggesting that Hill feared King, presumably on the off chance King would be acquitted and would extract revenge. Or something like that. The appellate court implicitly acknowledged that point.

Hill testified that she called the police after seeing the surveillance pictures broadcast on television. She admitted that she identified defendant as the person in the picture. When asked whether defendant was the person depicted in the surveillance photograph, however, she repeatedly stated that the person in the picture did not look like defendant. Her fear and anxiety over testifying certainly served to bolster her earlier identifications over her trial testimony.

The court presumes Hill told the truth earlier about being able to identify King on the video, but lied on the witness stand about being unable to identify King on the video because she was afraid of, of, ... of something.

Perhaps Nekita Renee Hill was reluctant to perjure herself at trial where a man's life was at stake.

Perhaps Hill feared the wrath of the State for telling the truth.

The Tell

You don't have to rely on me to understand that the apellate court was wrong in its ruling. The apellate court told you so itself, in its own opinion. It told you so in the form of a tell.

A tell in poker is a subtle but detectable change in a player's behavior or demeanor that gives clues to that player's assessment of his hand. A player gains an advantage if he observes and understands the meaning of another player's tell, particularly if the tell is unconscious and reliable. Sometimes a player may fake a tell, hoping to induce his opponents to make poor judgments in response to the false tell.

A tell may be common to a class of players or unique to a single player. Some possible tells include leaning forward or back, placing chips with more or less force, fidgeting, doing chip tricks, or making any changes in one's breathing, tone of voice, facial expressions, direction of gaze or in one's actions with the cards, chips, cigarettes or drinks.

An underlying rule to many tells is: Weak means strong, strong means weak. Thus, players who hold weak poker hands attempt to convince other players at the table that they are strong: staring down an opponent, throwing chips down forcefully into the pot in an effort to discourage others from calling. Whereas, players who hold strong hands tend to try to disguise their hand as being weak. They attempt to fly under the radar by being a passive player at the table: not making direct eye contact, softly tossing the chips in, friendly and talkative. They're deliberately trying not to come across as intimidating, so as to entice a call.

From the same appellate's court ruling in State v. King, I present the appellate court's tell.

Although we conclude that the trial court did not commit fundamental error in this case, we caution lawyers against making overreaching factual assertions during opening statements. Opening statements are intended to inform the jury of what the party expects to prove and prepare the jury for the evidence that is to be presented. [citation] Opening statements are not, however, the appropriate forum to argue a case. [citation]

In this case, the prosecutor wanted to prepare the jury for the fact that Hill might be a reluctant witness. To accomplish this, the state commented that Hill was "scared to death." The court can envision different factual circumstances where the use of this type of improper but colorful hyperbole during opening statements could have unduly prejudiced the defendant. Although we believe no such prejudice occurred in this case, we caution lawyers against straying too far from the purpose of the opening statements by "arguing" a case through its characterization of the evidence that it intends to offer at trial. This kind of reference is better left for closing arguments -- where a prosecutor can properly refer to evidence actually in the record.

In other words Mr. Prosecutor, you did nothing wrong. Don't do it again.

Wednesday, March 16, 2011

Eric King sits on death row. The people of Arizona plan to execute him on 29 March. Though I stand mute for most executions, I fervently oppose this one. I believe Eric King may in fact be innocent of the crime for which he is to die.

This is the third part of a five-part series. Prior to reading this Part 3 you should first read Parts1 and 2. Part 1 is here. Part 2 is here. A link at the each Part will lead you to the next, leading you right back to this post.

Armando Saldate

So far, I have based almost information relating to King's case on the appellate ruling King v. Schriro. From reading the appellate decisons, nothing particularly unusual pops out regarding Armando Saldate. Recall that he was the detective who built the case against King by extracting information from Michael Jones in exchange for Jones' freedom / life. In browsing the internet, however, Saldate's role in this case adds considerably to my unease about King's conviction.

Counting his role in King's case, Armando Saldate has played a central role in placing five people on Arizona's death row. That makes him an ace. Unfortunately, the convictions are remarkably shaky. I'll summarize those other cases in a bit. First, I'll discuss an issue reflecting poorly on Saldate's character and performance as a detective.

In 1973, 13 years before Armando Saldate was to become the key figure in the Eric King case, he was suspended for conduct unbecoming an officer. I quote below from the separation notice.

In accordance with the provisions of Rule 19A of the Personnel Rules of the City of Phoenix, Arizona, you are hereby suspended from duty, without pay, for five (5) working days, effective Wednesday, September 5, 1973, through Sunday, September 9, 1973, inclusive.

On August 15, 1973, at approximately 8:40 P.M. while on duty, you stopped a woman at 1100 East Mohave for a traffic violation; a faulty tail light. You then determined that she did not have a driver's license and commenced writing her two repair order citations for he violations.

You also learned there was the probability a traffic warrant for her arrest existed. You did not verify the warrant, nor did you make an arrest as she promised to take care of the warrant in the near future.

To show her gratitude for not going to jail on receiving moving vehicle citations, the woman offered to kiss you. You proposed that the two of you go to a less conspicuous place and suggested 300 East Maricopa Freeway. The woman agreed, and you followed her to that location. There, you leaned inside the car, kissed her and deliberately began making advances and took liberties which amounted to conduct unbecoming an officer. Therefore, you have subjected yourself to disciplinary actions under the provisions of Phoenix Police Department General Order 3.3.4(7). Conduct Unbecoming an Officer and General Order 3.3.4.

Officer Saldate, although your actions to this matter were encouraged by the woman involved, the situation became even more aggravated when she offered, and you agreed, to meet later for the purpose of engaging in an act of sexual intercourse. When you got off duty, you went to the meeting place, but left when you found she was not there.

When you were interviewed by your supervisors concerning this incident, you specifically denied going to meet the woman after completing your shift.

In addition, you omitted some of the details of the incident regarding the liberties you took with the woman. This was discovered later when you were given a polygraph examination. You then admitted the complete details of your involvement and now realize your actions were grossly improper.

Officer Saldate, your past performance as a police officer has been satisfactory. However, because of this incident, your image of honesty, competency, and overall reliability must be questioned. Therefore, so must your value to the department be questioned.

Actions such as those you have exhibited while on duty, in full uniform, not only demonstrates extremely poor judgement and lack of concern for your profession, but also reflects directly upon the Phoenix Police Department as a whole, and will not be tolerated.

This suspension is intended to impress upon you the seriousness of your actions and to serve as a reminder that future infractions of this nature will result in more severe disciplinary action or dismissal.

I hesitate to include such material, so remote in time. I do so, however, because Saldate's own employer ruled that his "honesty, competency, and overall reliability must be questioned." It must be questioned still because it seems as if Saldate continued to mix sexual improprieties with dishonesty. It must be questioned to this day because a man's life depends on the integrity of his performance and integrity.

As late as 1989, three years after his central role in King's conviction, Armando Saldate was interviewing Sandy Pickinpaugh, sister of Debra Milke, one of the people Saldate helped place on death row. During that interview, Saldate volunteered a bizarre story. He claimed that while interviewing Debra Milke she flashed her breasts at him in order to, to, ... well that part is not really clear.

Saldate: So me and her talking and I'm telling her I'm not going to tolerate that. She's not going to do it. She -- dress looked very nice. She wraps the front of her blouse and she pulls it up to her eyes, she didn't have no tears, to wipe her tears away but she didn't have any.

Pickinpaugh: (Inaudible).

Saldate: Yeah. Which quickly exposed her (inaudible). I didn't really pay that much attention to -- I knew, you see, my job, in my position I know what she was doing to me. I knew what she -- (inaudible). But see, I'm there for information, okay. And she's like trying to see if I --

Pickinpaugh: It's working.

Saldate: It's working. If he's looking at my breasts then I may be able to talk myself out of this. Okay. So that's what I'm telling you. That's the type of manipulation she does.

We can't check the recording of Milke's interrogation to see if Saldate was telling the truth or lying, or simply fantasizing. We can't check the recording because there is no recording. Saldate explained variously that he forgot to turn the recorder on, or that Milke would not allow him to record it.

We can't check with any one of the other people in the interview room, because there was no one else in the room. Saldate had instructed everyone else to leave.

We can't check with anyone who monitored the interrogation through a one way mirror, since apparently no one monitored the interview.

We can't check his contemporaneous notes. He destroyed his notes.

We know that he did not mention the incident in his paraphrased report of the interrogation, nor when he was in front of the grand jury, nor when he was in front of the jury.

Best I can tell, Armando Saldate never mentioned this alleged incident again.

What we can do is examine a news photo (or video freeze frame) taken of Debra Milke in the custody of Armando Saldate. I link to the photo below.

From the photo, we can see that Debra Milke was not wearing a blouse, as Saldate claimed she opened. She was wearing a long sleeve sweater. The reference explains that Debra Milke was wearing a white cardigan sweater and a pink T-shirt.

Saldate should never have been alone in the interrogation room with a female suspect without someone monitoring the interview. It was a violation police procedures. Such procedures are intended to prevent sexual impropriety, or false allegations of such impropriety. Saldate orchestrated a situation in which he was alone with Debra Milke, without monitoring, without recording, without notes. He then, based on the photo, lied about Debra Milke exposing herself to him.

And, as an aside, he claimed she then confessed to murdering her son.

"Officer Saldate, ... because of this incident, your image of honesty, competency, and overall reliability must be questioned.

Debra Milke

In December 1989, two men known to Debra Milke took her four-year old son to see Santa Claus at the mall. They then took him to the desert and shot him in the back of the head.

Saldate arrested Debra Milke and interviewed her as just described. He claims she confessed to hiring the two men to murder her son so that she could collect on his $5000 insurance policy As noted previously, no one else was in the room, no one monitored the interrogation, the recorder was not turned on, and Saldate destroyed his contemporaneous notes.

Saldate claimed he arrested Milke because Roger Scott, one of the two men who murdered Milke's son, told him that Milke hired them to kill Christopher. Scott allegedly confessed this to Saldate in a car, as Scott was leading the police to the body. Scott's enroute confession is as questionable as Milke's flashing breast confession. The other officer in the car with Saldate and Scott somehow never heard Scott confess.

Scott did, however, later provide the State with evidence they wanted to hear in exchange for his life. Based on his purchased testimony and her alleged confession, the jury found Debra Milke guilty of capital murder.

Debra Milke remains on Arizona's death row to this day.

Jim Styer

Jim Styer is one of the two men who took Christopher Milke, Debra's son, to the desert. The other was Roger Scott. The big question was which of the two men was going to die for the shooting, and which was going to spend his life in prison. Because Roger Scott implicated Debra Milke, and because Jim Styer refused to do so, Roger Scott was sent to prison and Jim Styer was sent to death row.

[Debra Milke's supporters argue the wrong people are on death row. They argue that Debra's ex-husband (and Christopher's father) hired Roger Scott to commit the murder, that Roger is the one who shot Christopher, and that Debra was not involved in any fashion.]

David Hyde

Less than two years after extracting disputed and undocumented confessions from Debra Milke and Roger Scott, Armando Saldate extracted a confession of murder from David Hyde after six hours of interrogation. Once again, Saldate was alone with Hyde. Once again, the interrogation seems not to have been recorded or witnessed. Once again, everyone had to rely on Saldate's paraphrased recounting of the interrogation. Once again everyone was forced to rely on Saldate's "honesty, competency, and overall reliability."

David Hyde was convicted and sentenced to death. Unlike the others, however, David Hyde had his conviction reversed on appeal, in part due to the unlawful confession extracted by Armando Saldate. Hyde pled no contest to second degree murder rather than risk a retrial, and walked free.

Eldon Shurz

Eldon Shurz is on death row for pouring a gallon of gasoline on a man confined in a small chain link pen and setting him on fire. Shurz admits to knocking the man down during a fight, but claims he was walking away from the scene when someone else lit the man on fire.

From the appellate decision:

Bahe was on the ground and, in an attempt to get away, crawled under a chain-link fence into a small enclosed rectangular space between a stairwell and a brick wall. Schurz picked up the plastic jug, smelled its contents, and then splashed gasoline on Bahe. Using a lighter, Schurz ignited a small puddle of gasoline. When the flames failed to spread to Bahe, he kicked the burning puddle toward him. Bahe went up in flames. After Schurz and Allison fled, Bahe managed to crawl under the fence and out of the enclosed space.

The State's case is shaky indeed. The victim's clothes were never tested for residual gasoline, and they did not smell of gasoline when removed from their sealed bag before trial. The state was forced to call in a snitch to bloster their case. Worse yet, they had no confession from Shurz, even though Armando Saldate worked on the case.

In this case, however, Saldate assisted with the prosecution in another, and unbelievable fashion. The State's case was that the victim had crawled under the fence into the enclosed, locked area before he was burned, and crawled back out afterwards. It was necessary to explain to the jury why the victim was found outside the enclosed area. To accomplish this, Armando Saldate transformed himself from master interrogator into an arson expert. Though members of the fire department were involved in the case, it was Armando Saldate who testified as the State's arson expert, though he was clearly unqualified to do so.

Saldate assured the jury that there had indeed been fire inside the fenced enclosure. He figured that out based on charring along the sidewalk. Even though he was not an arson expert, or even a member of the fire department, and even though the sidewalk has been sprayed with a fire hose and fire extinguisher prior to his arrival, he somehow knew and testified that the victim had been burned while within the enclosure, just as the State wanted the jury to believe.

Conclusion

Armando Saldate played a key role in Eric King's conviction. He obtained the confession from Michael Jones that sent Eric King to death row. However, because of Saldate's history of unprofessional behavior, both before and after the King trial, Saldate's "honesty, competency, and overall reliability must be questioned."

Sunday, March 13, 2011

Eric King sits on death row. The people of Arizona plan to execute him on 29 March. Though I stand mute for most executions, I fervently oppose this one. I believe Eric King may in fact be innocent of the crime for which he is to die.

This is the second part of a five-part series. Prior to reading this Part 2 you should first read Part 1. You can do so here. A link at the end of Part 1 will bring you back to this Part 2.

Overview

In Part 1, I attempted to provide all the significant evidence heard by the jury. I also attempted to limit the discussion only to information heard by the jury. I then asked you to consider how you would have voted had you been on the jury. I asked you also to consider why you would have voted such. I promised to reveal my vote and my reasons in this Part 2.

My vote must be of no surprise to any of you, given what I have written so far. I would have voted not guilty. Hopefully, my reasons will also come as no surprise.

The evidence most damning to Eric King came from his alleged accomplice Michael Jones and Jones' girlfriend, Nekita Hill. The primary exculpatory evidence was that related to Eric King's height. I will discuss each in turn.

Richard Jones

As a juror, I am suspicious of any testimony from a snitch or an alleged accomplice. My expectation is that the testimony has been purchased. The currency for such a transaction is freedom rather than imprisonment. In some cases, such as the current case, the currency may be life itself. The payment is made in exchange for testimony in accord with the State's wishes.

It is an unseemly business at best. If a defense attorney were to secure a prisoner's testimony for cold hard cash, the State would suffer an apoplectic fit, the jury would disbelieve the tainted testimony, and the defense attorney would face disbarment and criminal prosecution.

As a juror, you are apt to be told, usually during the State's closing argument, that the State must, on occasion, reluctantly rely on the testimony of disreputable characters. That may be true. However, if the State asks me to relieve them of their burden of proof because their witness is a scoundrel, I will decline. I will instead weigh each witness's testimony against all the physical evidence and against the testimonial evidence of all other witnesses. And if the witness be a snitch or an alleged accomplice, I will consider the likelihood that the testimony has been purchased in exchange for testimony favorable to the State.

Not only would I expect that Jones' testimony had been purchased, I would have taken note of the Sergeant Switzer's testimony that Jones' initially claimed he did not know the person who had been with him, the person who ran away when ordered to "Halt!" by the sergeant.

I would also take note of Jones' frequent and convenient bouts of forgetfulness followed by his bouts of recollection. I take additional note of his alleged drunkenness against the sobriety described by Switzer and Saldate.

It seems clear that Jones lied about knowing King when Jones was in danger of arrest, and equally clear than Jones lied about not remembering when he wished not to testify. But we need not rely on ancillary testimony to suspect him of lying. Consider, if you will, his testimony about the crime itself.

Jones claims that went to the store with the shooter (King or another) to buy wine, then claims he waited outside while the shooter went inside. That's a bit unusual but not damning. Jones then claims he was surprised when the shooter shot the employees. He not only ran from the scene in fear of arrest, he ran from the scene in the company of the shooter. We can assume he then waited for the shooter as the shooter returned to wipe the guard's holster. Jones then walked from the crime scene in the company of the shooter.

Jones made no effort to assist those who had, to his surprise, been shot. He made no effort to inform the police or other emergency personal. He made no effort to separate himself from the person who had suddenly, and to his alleged surprise, shot two innocent employees. He even waited patiently as the shooter returned to clean the crime scene. Then he lied to the police about even knowing the person he had been walking with.

Jones' testimony, though reluctant, seems self-serving. He was merely an innocent bystander, surprised by the events of the evening. He remained in the company of the actual shooter after the fact, not because they were fleeing together, but because ... because ... well, I have yet to hear an explanation for that one.

The self-serving, almost-certainly-purchased testimony of a possible participant in the murders does not, in my opinion as a skeptical juror, advance the State's case very far.

Nekita Hill

While Jones' testimony was questionable, that of his girlfriend was absolutely incredible, in the sense of absolutely not credible.

Most significant and astounding was her claim that she not only saw King throw a plastic bag into a dumpster, she saw could somehow see what was in the plastic bag, despite the opacity of your standard plastic bag, and despite the darkness frequently occurring near midnight. She didn't apparently claim to have opened the dumpster, removed the bag and looked inside. She apparently claimed instead to have seen the gun, the sweater, and the pattern on the bundled up sweater through the conveniently thin bag, in the dark of night.

Even King's presence in that area at that time was extremely unlikely. Assuming King was the shooter, he ran from the crime scene, returned to wipe the guard's holster clean, returned to where Michael Jones waited for him, walked from the scene with Jones until spotted by the police, then fled south. Hill claims she then coincidentally walked the same path or similar path soon thereafter, when helicopters were circling overhead and presumably while police cars were racing about with sirens blaring.

Are we to believe that under those conditions, with police cars racing to and from the scene, with helicopters circling above, that King decided to return to the area of the crime so that he could dispose of the evidence, closer to the scene, where it would be more easily found? Are we to assume that after fleeing south to escape the police, King acquired a thin plastic bag, inserted his sweater and the gun, made a U-turn, headed back north to the area of the crime, and then deposited the bag in the dumpster, just as Jones' girlfriend was walking by?

The unlikelihood of Hill's testimony is compounded by her claim that she wanted to, but could not go to the store with Jones and King. Recall that she claimed to be unable to find a babysitter. Are we to believe that she suddenly, in the time it took for King shoot two people and clean a cash register, found a sitter and arranged with her best friend to walk to her friend's house, which was coincidentally near the crime scene?

Though Hill allegedly knew that Jones and King intended to go to the store, and though she knew a crime had been committed there, and though she knew her boyfriend had been arrested for that crime, and though she had seen King dispose of the murder weapon and distinctive sweater in a dumpster, she claims it did not occur to her to contact the police until she saw a blurry, low-quality photo of the shooter three days after the crime.

Are we, as skeptical jurors, expected to accept such piffle as proof beyond a reasonable doubt?

Height

The state presented no credible evidence that Eric King was involved with the robbery and shooting at the Short Stop convenience store. Their star witnesses, Richard Jones and Nekita Hill, boyfriend and girlfriend, were both obviously reluctant to testify, to repeat what they had earlier told the police. The stories they then told the jury were far from credible, especially so in the case of Nekita Hill.

None of the other witnesses identified King as the shooter. No physical evidence tied King to the scene. The State had bupkis, and clearly failed to meet their burden of proof beyond a reasonable doubt. Though the defense had no requirement to prove the defendant innocent, I believe they may have done just that. I believe the issue of height exculpates Eric King.

To investigate the height issue, I employ below a 2-dimensional person named Sang. Sang is a reference person provided in Google Sketchup, a three-dimensional modelling program. I used Sang previously in The Skeptical Juror and the Trial of Cory Maye. I needed to show multiple views of the Cory Maye duplex, both inside and out, so I constructed a three-dimensional model in Sketchup. I asked Sang to stand in front of the building for reference. You can see him in the image below.

Sang is described by Google as follows.

Sang is a member of the SketchUp development team. He enjoys rock climbing, pho and long walks on the beach.

Frank Madden described the two men he saw as being a little over 6 feet tall. I therefore scaled Sang up to 6 feet in height, cloned him, and gave the clone a differently colored shirt. I show the unenlightening result below.

Jones and Shooter, as per Witness Madden

Sergeant Switzer confirmed Madden's observation. He described the man who fled as being slightly taller than Michael Jones. Jones was 6 feet 1 inch tall. I therefore scaled Sang to be 6 feet 1 inch tall and his clone to be 6 feet 2 inches tall. I show their comparative heights below. Again, there is nothing particularly interesting about the result.

Had I been in the jury room, I would have been unable to fall back on my computer to make my point. I would, however, have recruited volunteer jurors of various heights to stand side-by-side. Had the King jurors taken the trouble to do so, they would have seen exculpatory information staring them in the face. Had they weighed that straightforward evidence from the unbiased witnesses (with nothing to gain) against the unlikely testimony of the clearly biased witness (with Jones' very life at stake), I choose to believe they would have voted not guilty.

In Part 3 of the series, I will relay to you information critical to the case but kept from the jury. We'll see if it changes your thoughts on how you would have voted.

Saturday, March 12, 2011

This is the first in a 5 part series regarding the impending execution of Eric John King by the people of Arizona. The execution is scheduled for the 29th of this month. While I stand mute regarding most executions (since I find no chance of innocence in most cases), I fervently oppose this execution.

Around midnight on 27 December 1989, a black male, brandishing a pistol, entered the Short Stop convenience market at 48th Street and Broadway in Phoenix, Arizona. The robbery was captured on two time-lapse video cameras. The videos were of such low quality that the armed robber would be difficult to identify. The robber was, however, wearing a dark sweater with a band of light colored, diamond-shaped markings across the chest and arms.

At nearly the same time, Frank Madden was driving to the Country Kitchen restaurant, located near the Short Stop convenience market. As he drove past the Short Stop, he saw two black men walking in the parking lot. Each was a little over 6 feet tall. One of the two wore a blue or black and white sweater with "some pattern like pyramids." The other wore a "green sweatshirt."

Frank Madden continued past the Short Stop to the Country Kitchen. There he met his girlfriend in the parking lot. They discovered that the Country Kitchen restaurant was closed.

At nearly the same time, Kevin Harris and his friend David Dils were driving through the intersection of 48th Street and Broadway.

While Frank Madden was talking to his girlfriend outside the Country Kitchen restaurant, and while Kevin Harris and David Dils were passing through the intersection at 48th and Broadway, the armed robber shot the Short Stop clerk. On the security video, the clerk can be seen moving backward then falling to the floor. Though not shown on the video, the security guard was also shot. Though the clerk survived long enough place a phone call for help, both shooting victims would die.

Kevin Harris and friend David Dils heard the gunshots. Harris was looking in the direction of the Short Stop and saw two black men running away from the store. One of the men held a gun in his hand. Harris and Dils drove into a nearby parking lot, got out of the car, and approached the store.

Frank Madden and his girlfriend also heard the gunshots. Madden drove the short distance to the Short Stop, arriving before Harris and Dils. Madden exited his pickup and walked to the front of the store. He saw the security guard lying on the ground. He noticed that the guard's holster was empty. The guard was moaning. Madden saw blood on the right side of his stomach.

Madden noticed a black man, one of the two he had seen just a bit earlier (the one with the dark sweater) walking toward the store. Madden phoned 911. While Madden was calling 911, the man with the dark sweater went over to the security guard, pulled out a white cloth, wiped the guard's holster and belt, then left the scene.

Just then, Nolan Thomas, his son Derek, and Greg Hecky pulled into the Short Stop. As Nolan parked his car, Derek directed his dad's attention to the security guard lying on the ground. Nolan looked over and saw a black man with a mustache and goatee, wearing a black sweater with a white "logo," bending over the security guard. Like Madden, he saw the man wipe off the guard's empty holster with a white rag and then run off.

Harris and Dils arrived soon thereafter. Harris saw the security guard lying on the ground and Frank Madden using the phone. Dils checked the guard's pulse and found none. Harris and Dils then entered the store and saw the clerk behind the counter. The clerk had been shot in the right shoulder and stomach. He was holding a telephone yelling into the receiver. Dils and Harris assisted the clerk until the fire department arrived.

Phoenix Police Sergeant Richard Switzer received a radio call to go to the Short Stop. The call included a description of the suspects. While driving east on Broadway, he saw two black males walking west on Broadway across 44th Place. Sergeant Switzer made a U-turn and drove toward the men to determine whether they fit the suspects' descriptions. Switzer shined a spotlight on the two men, got out of his car, and walked toward them. Despite Switzer's order to "halt," one of the men (the one wearing a blue sweater with white markings on the upper sleeve) fled the scene running south. Switzer remembers the man who ran as being slightly taller than the man who did not run away.

The man who stopped identified himself as Michael Jones. After being asked about the man who ran away, Michael Jones told Sergeant Switzer that he had just met the man and did not know him. Jones was arrested and interrogated by Detective Armando Saldate.

Jones was staring at a capital murder charge. Eric King was arrested later that same day, 28 December.

Three days later, a savior stepped forward in the form of Jones' girlfriend, Nekita Renee Hill. Nekita Hill contacted the police and told them that she saw a picture from the Short Stop security video on the television. She recognized the man in the picture as Eric King. She recognized him, where others couldn't, because she knew Eric King. Eric King was a friend of her boyfriend, the endangered Michael Jones, and she had therefore encountered him frequently.

Once she realized that the armed robber was Eric King, she remembered that on the night of the murder, she was walking with her friend to her friend's house near 48th Street and Broadway, the very corner where the crime occurred. She remembers helicopters were flying overhead. As they approached her friend's house, she saw Eric King walking toward a dumpster. She saw him throw a light-colored, thin plastic bag into the dumpster. The bag contained a gun and a dark sweater with a white diamond pattern. She had seen Eric King wearing that very sweater on the night of the robbery.

At King's trial, Michael Jones testified that he had been to the Short Stop a couple of times on the evening of the crime, and was in fact there when the robbery and murders took place. He testified that he and Eric King had gone to the Short Stop to buy wine, and that he had remained outside while defendant went inside the store. He testified that while he was waiting outside, he heard gunshots. On hearing the shots, he turned toward the store and saw King leaving the store with a gun in his hand. He saw the security guard lying on the ground in front of the store with no gun in his holster, though (during an earlier visit) he had seen the guard armed with either a .44 or .357 magnum. Though he did not ever see King touch the guard, he believed that King took the gun from the guard.

Jones testified further that the next time he saw King, after they had both been arrested, King's hair was shorter and he had shaved his beard and mustache. When shown a photograph made from the surveillance camera inside the store, Jones testified that the person in the photo "looks a lot like" King and that "it seems like" King.

Jones made clear that he did not want to testify. On muliple occasions, he claimed to have forgotten events and conversations he described during his interrogation by Detective Armando Saldate. When pushed, however, he would often remember what he just previously claimed he could not. He attributed his lack of recollection to drinking that night, though Sergeant Switzer and Detective Saldate each testified that Jones did not appear to be intoxicated.

Detective Saldate was therefore called as a witness to describe what Jones had said during the interrogation.

Jones' girlfriend, the timely Nekita Hill, also testified for the state, but only reluctantly. She admitted that she did not want to be involved with the trial and that she was testifying only under threat of arrest. She testified that her boyfriend Michael Jones and his friend Eric King had gone to the Short Stop in the "middle of the night" on the night of the murders. She wanted to go with them but her mom would not babysit for her.

When Hill was shown a copy of the picture that was broadcast over the television, she admitted that the picture prompted her call to the police. She also admitted telling the police that the person depicted in the picture was Eric King. She tried recanting her earlier identification, however, by testifying that the person depicted in the picture did not look like Eric King. She confirmed that King had a beard and a mustache, and that his hair was longer and wilder at the time of the murders.

Pickup driver and eyewitness Frank Madden could not positively identify defendant as the man he saw that night, but he testified that the man he saw had "high cheekbones" like defendant's, that defendant looked very familiar, and the only difference was that the man he saw had facial hair and was not as nicely dressed as defendant.

Eric King did not testify. The only witness called by the defense was Sergeant Switzer, who essentially restated his earlier testimony concerning the height of the man who ran away when he stopped Jones.

During closing arguments, the defense attacked the credibility of the state's two key witnesses (Michael Jones and girlfriend Nekita Hill) and focused attention on his Eric King's height. King was only 5 feet 8 inches tall. Two witnesses, Frank Madden and Sergeant Switzer, testified that the person with Jones was over 6 feet tall.

The jury unanimously convicted Eric King of two counts of premeditated first-degree murder and one count of armed robbery, dangerous. Eric King is now scheduled to die by lethal injection in 17 days.

What do you think of this case?

Did the prosecution prove its case beyond a reasonable doubt?

If you had been on the jury, how would you have voted?

Why?

On a scale of 0 to 100, with 0 being positively innocent and 100 being positively guilty, what number would you assign to King's probability of guilt?

1. There was not press converage of this case available on the net. I relied heavily on the appellate decisions, as I frequently do. The appellate decisions did not include the date of arrest or the names of the victims.

2. Incorporated the date of King's arrest into the post. King was arrested on 28 December 1991.

Friday, March 11, 2011

Wednesday, March 9, 2011

The Supreme Court has recently ruled that Hank Skinner has a constitutional right to pursue DNA testing under civil rights legislation. Given that Texas desperately wants to execute him, one can understand Skinner's interest in the testing.

Texas, via DA Lynn Switzer, claims that Skinner is indisputably guilty and had a chance to test the DNA before his trial. Switzer claims she opposes the testing because it will only delay justice.

When I investigated this case one year ago this month, I made a detailed graphic summarizing the DNA that has been tested and remains to be tested. I re-post that graphic here, so that readers will have a better understanding of what all the fuss is about.

It's a large graphic. Click on it to enlarge. Once it appears as a separate image, click on it again to enlarge it even further.

The DNA items shown as "Tested" were tested after Skinner's trial, in the expectation that they would confirm his guilt and shut people up. The results instead exonerated Skinner and increased the furor over his impendng execution.

The DNA items shown as "Not Released" were sent for testing with the items which were tested. The "Not Released" items were either tested without releasing the results, or were not tested though sent for testing.

The remaining DNA items have never been sent for testing, as far as I can tell. They were tested neither before or after his trial. They should be tested. Before we execute anyone, we should test all the relevant DNA.

Monday, March 7, 2011

The Supreme Court of the United States has just announced, in Skinner v. Switzer, that Hank Skinner has a right to pursue DNA testing under a civil rights law. That is spectacularly awesome news.

This just in. Before we execute someone, that person can now argue in court that all relevant DNA should be tested.

For the one or two of you who may have been reading this blog since its beginning, you may recall that I cut my teeth with a ten part series on the Hank Skinner's case. In fact, I factually exonerated him in a post (not surprisingly) called FACTUALLY EXONERATED! I actually used all caps AND an exclamation mark.

For those newer to this blog and unfamiliar with the Skinner case, the Supreme Court decision (written by Ruth Bader Ginsberg) provides quite a nice, compact summary for a very complicated case.

A Texas jury convicted petitioner Skinner and sentenced him to death for murdering his girlfriend and her sons. He claimed that a potent alcohol and drug mix rendered him physically unable to commit the brutal murders, and he identified his girlfriend’s uncle as the likely perpetrator. In preparation for trial, the State tested some of the physical evidence, but left untested several items, including knives found on the premises, an axe handle, vaginal swabs, finger-nail clippings, and certain hair samples. More than six years later, Texas enacted Article 64, which allows prisoners to gain postconviction DNA testing in limited circumstances. Invoking Article 64, Skinner twice moved in state court for DNA testing of the untested biological evidence. Both motions were denied. ... Skinner next filed the instant federal action for injunctive relief under §1983, naming as defendant respondent Switzer, the District Attorney who has custody of the evidence that Skinner would like to have tested. Skinner alleged that Texas violated his Fourteenth Amendment right to due process by refusing to provide for the DNA testing he requested. ...

Held: There is federal-court subject-matter jurisdiction over Skinner’s complaint, and the claim he presses is cognizable under §1983.

Legal subtleties abound in this case, and it seems to me as if Rob Owen (Skinner's attorney) has pulled yet another rabbit out of the jurisprudential hat. Strangely, it seems as if their plea to the Supreme Court would have failed if Rob had argued that the testing would prove Hank to be wrongfully convicted. Read that sentence again if you wish, but I believe I have typed it correctly.

Measured against this Court’s prior holdings, Skinner has properly invoked §1983. This Court has several times considered when a state prisoner, complaining of unconstitutional state action, may pursue a civil rights claim under §1983, and when habeas corpus is the prisoner’s sole remedy. The pathmarking decision, Heck v. Humphrey ... concerned a state prisoner who brought a §1983 action for damages, alleging that he had been unlawfully investigated, arrested, tried, and convicted. This Court held that §1983 was not an available remedy because any award in the plaintiff’s favor would “necessarily imply” the invalidity of his conviction.

Rob Owen instead argued the law was flawed, at least as it was interpreted by the Texas Courts. He was not arguing that Skinner's rights were violated because he was wrongfully convicted. He was simply challenging the misconstrued interpretation of a possibly flawed law. I'm sure I bollixed that one, but hopefully you get the point.

His counsel has clarified that Skinner does not challenge the prosecutor’s conduct or the CCA’s decisions; instead, he challenges Texas’ postconviction DNA statute “as construed” by the Texas courts.

CCA stands for Criminal Court of Appeals.

Here, success in Skinner’s suit for DNA testing would not “necessarily imply” the invalidity of his conviction. Test results might prove exculpatory, but that outcome is hardly inevitable, for those results could also prove inconclusive or incriminating. Switzer argues that, although Skinner’s immediate aim is DNA testing, his ultimate aim is to use the test results as a platform for attacking his conviction. But she has found no case in which the Court has recognized habeas as the sole remedy where the relief sought would not terminate custody, accelerate the date of release, or reduce the custody level.

So Switzer is claiming that Skinner merely wants to prove his innocence, Skinner is arguing that he is merely challenging a misconstruction of a law, and the Supreme Court sides with Skinner. Welcome to our justice system.

I'm pleased as punch that Skinner will have another chance in the lower courts to request DNA testing, but I feel as if the world is turning upside down. The people who want to execute Skinner are concerned that he might try to prove his innocence, and the people who want free Skinner are claiming that's not their goal.

Robert Owen, of course, praised the decision. "We look forward to making our case in federal court that Texas's inexplicable refusal to grant Mr. Skinner access to evidence for DNA testing is fundamentally unfair and cannot stand."

My congratulations to Rob Owen and to Hank Skinner. To Lynn Switzer and the State of Texas, I offer this suggestion. If you are so confident that the DNA will simply confirm Hank's guilt, and if you really want to expedite the process as you claim, just test the damn DNA.